Fixing the Sex Offender Registry

Fixing the Sex Offender Registry

Police and government officials are working on a major overhaul of Canada's sex offender registry after a Maclean's investigation revealed serious flaws in the four-year-old system. Both the RCMP and the provinces have submitted a long list of recommendations to Public Safety Minister Stockwell DAY, urging Stephen HARPER's Conservatives to revamp the defective database before more rapists and pedophiles "fall through the cracks." Day's office will not discuss timelines ("When the government has something to announce, it will be made public," a spokesman says), but the Mounties are confident that after years of warning their political masters, a fix is finally on the way. "Definitely, the media attention has shone the light on the national sex offender registry," says Insp. Pierre Nezan, the officer in charge of the program. "Whenever the public takes an interest in a story it can generate some action, and I think that's what it's doing."

Launched in 2004, the registry was supposed to be a high-tech crime-fighting tool, a state-of-the-art database that can pinpoint the whereabouts of all convicted sex offenders. But as Maclean's revealed in January, the system is a dysfunctional mess. Hundreds of offenders are missing, thousands more are never listed in the first place, and the software itself is so archaic that the computer can't record the most basic fact of all: when is an offender scheduled to check in?

In January, while the article was still on newsstands, Day requested a personal briefing from Peter D. Martin, the deputy commissioner of the RCMP. Martin did not mince words. According to internal memos obtained under the Access to Information Act, he told the minister that the system is crippled by "deficiencies in the legislation" and "requires significant amendments in order to enhance its effectiveness." His presentation confirmed the litany of problems published in Maclean's, but it also included some stunning new revelations - including the fact that prosecutors are using the registry as a "negotiation chip during plea bargains." In other words: plead guilty, and even though you're a convicted sex offender, you won't have to register.

The Mounties have been sounding alarm bells since the registry was first unveiled. Senior officers have sent several scathing memos to MPs and bureaucrats, warning that Canadians would be outraged if they knew just how broken the system is. The RCMP hoped that a parliamentary review of the legislation, slated for 2006, would provide a chance to publicize their concerns, but that review has still not taken place. In fact, the House of Commons public safety committee recently voted, in a secret ballot, to study contraband tobacco instead of the sex offender registry.

However, after years of political indifference, the RCMP is now cautiously optimistic that - in their words - "a highly critical article in Maclean's magazine" could be the straw that forces the feds to act. "It may accelerate the review and encourage the government to make some of the legislative amendments that have been sought by the RCMP and other law enforcement agencies," reads another memo, sent to Commissioner William Elliott. "This article may be a one-step-back-two-steps-forward scenario for the RCMP (initial negative reaction and loss of confidence in the NSOR, followed by public pressure to strengthen the legislation)."

Six months later, that prediction appears to be coming true. Not only is Day's office working on a solution separate from the parliamentary review, but he has promised to share his plan with the Mounties "prior to any decisive action being taken."

Fixing the flaws will not be easy. If the RCMP briefing notes reinforce anything, it's that the entire system is handcuffed by one major problem: Ottawa's obsession with privacy. The former Liberal government was so worried about breaching the Charter rights of convicted criminals that it built a registry riddled with unnecessary loopholes that benefit the offender, not the victim. In theory, the database is designed to solve sex crimes by providing police with an instant list of suspects who live near a crime scene. But in reality, those lists are incomplete, outdated, and in some cases, dead wrong. "You look at any policy from two perspectives: design and function," says David Butt, a former Ontario prosecutor who has spent his career fighting child pornography. "Is the policy well-designed and does it function well in terms of achieving objectives in the real world? The sex offender registry comes back 'no' on both those counts. It is a comprehensive failure."

Registration isn't even mandatory. A prosecutor must ask a judge to order a defendant onto the database, and in almost half of all eligible cases (42 per cent), those orders are never made. Sometimes the Crown forgets to ask. Sometimes a judge refuses. And sometimes, as Day was warned, the Crown uses registration as a "negotiation chip" - even though the law does not authorize such deals. Regardless of the reason, the result is frightening: every week, dozens of newly convicted rapists, molesters, child pornographers and other dangerous criminals are spared the hassle of having their names added to the very system that was built to keep track of them.

Those who are ordered to register are just as difficult to monitor. Every offender must report to police once a year and every time they move, but of the 16,000 names currently listed on the database, more than 1,200 are non-compliant in some way. Again, the legislation deserves much of the blame. The RCMP does not have the legal authority to record basic information - including an offender's next reporting date - so the computer is essentially useless when it comes to ensuring compliance. Amazingly, the Mounties have been forced to build separate, homemade tracking systems - a Rolodex, for example, or an Excel spreadsheet - to make sure offenders report on time. "The NSOR should not have to rely on other electronic or hard-copy files to function," one memo reads. "The database should be a one-stop shopping mechanism."

The registry is so technically flawed that if Day asked the Mounties for up-to-date compliance rates, it would take a few weeks to cobble together the stats.

The minister's briefing, which occurred on Jan. 17, exposed many other flaws:

• The law is "very clear that the [registry] can only be accessed after a sexual crime has been committed," not before. If a teacher describes a strange man loitering outside a school, police are not allowed to search the database for potential suspects. "Potential for preventing a sexual crime is ignored."

• Local police do not have direct access; they must contact the RCMP if they want to search the system. "Many police officers are unimpressed with or unaware of the [registry] and as a result, do not make use of it."

• A registered offender must tell the RCMP if he plans to travel away from home for more than two weeks, but not until after he leaves. "Canadian law enforcement believe that a [registered sex offender] who can travel anywhere consecutively for 14 days without having to report his movements is highly counterproductive to enhancing public safety." Even more troubling, if an offender does happen to tell police he's flying to, say, Thailand - a mecca for pedophiles - the Mounties are not allowed to warn Thai authorities. Or any foreign jurisdiction, for that matter.

• The Correctional Service of Canada refuses to tell the RCMP when federal inmates are set free, leaving the Mounties with no idea when hundreds of dangerous criminals are back on the streets and required to register. Prison officials believe "the legislation does not allow them to do this."

• Registry officials photograph offenders when they sign in, but the legislation doesn't specifically authorize mug shots. Nor does it give police the power to conduct random door knocks to make sure people are actually living where they say they are.

• Because non-compliance is a summary offence, the statute of limitations is only six months. Says one memo: "Charges for non-compliance may not be received or processed by Crowns before the six-month period and as a result, they are not laying charges. The police's view is that if the offender remains unregistered or non-compliant, then he is continuing the offence and charges should be laid. Some Crowns have refused to cede this point. Result: we have sex offenders who are non-compliant and there isn't anything we can do about it except update their information if and when we find them."

Day's briefing ended with this advice from the RCMP's deputy commissioner: "Any course of action should have as the objective not only identifying remedies but rectifying them through legislative amendments." In the briefing note, the last six words of that sentence are typed in bold letters.

"The sex offender registry does not need to be reviewed one minute more. The review is in," says Paul Gillespie, former head of the Toronto police child exploitation unit. "There is a problem, everybody recognizes it, and nine months from now, I want this thing to be fixed. I don't want to talk about it again and have everybody acknowledge - again - that it's weak and needs strengthening."

Nezan wants the same thing. His staff has been working closely with the provinces and the Public Safety Department, and he is hopeful that major changes will be announced in the coming months. "The issues that we're discussing are already out there and have been reported upon," he says. "We've made recommendations, and it's the minister's decision as to what he's going to do with them."

See also CRIME; SEXUAL ASSAULT; CRIMINAL LAW.

Maclean's July 28, 2008